2210952 (Refugee) - [2024] ARTA 604

2210952 (REFUGEE) [2024] ARTA 604 (1 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2210952
Tribunal:Senior Member- Denis Dragovic
Date:1 November 2024

Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Senior Member D Dragovic
Statement made on 1 November 2024 at 10.29am
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – supporter of Awami National Party and anti-Taliban – relatives killed, applicant and father beaten and applicant threatened – mother a teacher and supporter of education for girls – attempted extortion and forced recruitment – volunteer for organisation and member of village defence committee – mental health and work injury – livelihood, proper treatment and self-harm – low-level membership and activities – passage of time and no harm to remaining relatives – country information – security initiatives and general situation moderately safe – lack of adequate medical support applies generally and self-harm not persecutory – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES

BVT20 v MICMSMA [2020] FCAFC 222
Chan Yee Kin v MIEA (1989) 169 CLR 379

CHB16 v MIBP [2019] FCA 1089
CSV15 v MIBP [2018] FCA 699
EZC18 v MHA [2019] FCCA 464; [2019] FCA 2143
MIAC v SZQRB (2013) 210 FCR 505

MZAAJ v MIBP [2015] FCA 478
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 July 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Pakistan. He applied for the visa on 19 December 2017. The delegate refused to grant the visa and the applicant appealed that decision to the then Administrative Appeal Tribunal.
The applicant appeared before the Administrative Review Tribunal (“the Tribunal”) on 25 September 2024 to give evidence and present arguments.
The applicant was represented in relation to the review.
The applicant was receiving mental health since October 2019, but the nature of the support changed after he sustained while working in [work sector] on 19 October 2022.
The medical reports arising from the head injury offered somewhat contrary views on his current capacity. The most recent TAC assessment following an examination on 20 August 2024 notes that he is ‘currently unfit to work due to persisting headaches, dizziness, lethargy and tiredness.’ Whereas the one prior, from an assessment on 24 June 2024 states, ‘other work not in [work sector] appropriate, able to do certificate assistant in [subject] course and once completed commence work in the field.’ It adds under mental health, ‘headaches improving, concentration still affecting, dizziness less but still present’.
The applicant was receiving regular support from a psychologist from 14 October 2019. The report from the applicant’s psychologist notes that after having conducted a self-reported test the applicant was found to have stress, anxiety and depression in the ‘extremely severe range’. In addition, the self-reported test for post-traumatic stress led to a diagnosis of PTSD.
At the hearing the applicant described how his concentration and memory are affected by his mental health. He said that he is stressed, anxious, nervous. He said that the memory of past incidents triggers him.
Noting the applicant’s circumstances, I re-visited the Tribunal’s vulnerability guidelines, reviewed the representative’s requests as to how to support the applicant through the hearing and at the outset of the hearing engaged with the applicant on what approach would best suit him in so far as it facilitates the applicant in giving evidence and presenting arguments. He did not have any specific suggestions as to how the Tribunal could support him through the hearing. We discussed that he uses a pen and paper to help write any thoughts that he has and regular breaks were taken.
I note that in post-hearing submissions the representative questioned the ‘tone and content’ of a line of questioning at the end of the hearing relating to the applicant’s mental health, specifically making the following arguments:
The Tribunal’s proactive approach to offering breaks and providing an opportunity for consideration of adjournment at the hearing (consistently with the Guidelines at [45]) was appreciated. [The applicant] was clearly and visibly distressed at many points during the hearing, and he took those opportunities as appropriately offered.
However, our submissions also asked the Tribunal to question [the applicant] in a respectful way (Guidelines at [45]) and in a way that recognises his impairments with memory (see Guidelines at [86]), the symptoms and effects of trauma (Guidelines at [94]-[95]), and his emotional distress (Guidelines at [100]).
The representative then went on to identify an interaction and suggested that it was inappropriate. The representative provided reasons. I have not engaged with this further as it is the remit of the courts, if the applicant chooses to test this area of concern, as to whether the tone and content was appropriate.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
REASONS AND FINDINGS
The applicant is a [Age]-year-old male of Pashtun ethnicity from [Town 1], Swat District, Khyber Pakhtunkhwa Province, Pakistan. He has [brothers] and one sister along with other relatives living both in Pakistan and Australia. [Some] of his brothers live in [Town 1], one moved to Dubai and his sister is married and living in [Town 2], Swat.
The applicant has [relatives] who attained the rank of [Rank] in the Pakistan military, [specified relatives]. [One] passed away recently whereas the [others] are on [assignment], one in [Region], the other in Quetta, Pakistan. A letter of reference was received from the [Region] based relative.
The applicant completed a five-year bachelor’s degree that he claims is referred to as a doctorate in [subject] from [University] in Peshawar, Pakistan, from early 2008 through to December 2012. He then went on to study a master’s degree also in Peshawar from April 2013 through to May 2015.
The applicant claims that his family have been long term supporters of female education. In his initial statement he wrote that she had stopped teaching after a 2008 incident. In the pre-hearing statement and at the hearing the applicant explained that she had resumed teaching. He explained that she started again in about 2010/2011. He claims that she has had ongoing problems since then because of her teaching role. He claimed that the Taliban threatened her at their house and that his family received threatening calls. He recalled that they came 2-3 times through to 2014/15. He confirmed that the only person ever physically harmed was him.
The applicant claimed that he was a long-time supporter of the Awami National Party (ANP) having contributed to two elections one in 2008 and the other in 2013. He described his activities as going door to door to speak about the ANP, attend rallies, distributed voter cards, help set up his guest house for meetings and act as a ‘polling agent’ on election day among other electioneering activities.
He said that his whole family going back to his grandfather are long-time supporters of the ANP. He claimed that his entire extended family have been affiliated with the ANP since his grandfather’s time, but not all were members, some being supporters. The family’s support would be exhibited by elders aligning themselves with the ANP at assemblies and rallies. I noted that the ANP were successful in past elections including winning provincial government in 2008[1], and as such other families must have also been supporters. He confirmed that other families in [Town 1] also supported the ANP but claimed that his family was the main one.
[1] >
He has relatives who are active with the ANP and in politics. Of these he claimed that some have attained office and others have been killed. He wrote that a relative was elected councillor for the local council of [Town 1] but was killed in 2008. Another who was [Position] of the [Official agency] was attacked in 2011 by a grenade and injured. This relative is currently living in [Town 1] and has not been attacked since that attempt on his life. Another relative was killed in Karachi in 2012. The applicant believes that it was because of his ties to the ANP. This relative was active in the ANP in both Karachi and Swat. The applicant provided extensive details of the activities of these men and other relatives in his February 2024 statutory declaration.
The applicant’s experiences
The applicant claimed to have been beaten in 2008 by the Taliban who came to his house because of his mother’s role in educating young women and their support of the ANP. He wrote that they came to his house and ‘dragged me out from my house and beat me with their boots and gun butts.’
In early 2009 the Taliban are claimed to have come to the applicant’s house and demanded money, guns and to hand over the eldest son, the applicant, so as to join them. His father refused and shortly after they moved to Peshawar. This aligned with the time when the military operation against the Taliban began, and all civilians were required to leave Swat.[2] The family returned to Swat 3-4 months later, the applicant followed shortly after as he had started his studies in Peshawar at the time.
[2] >
The applicant claimed that in around 2010 his cousin notified him that his name was on a Taliban hit list. I asked if his name was the only name. He said that he didn’t know, he said that he didn’t ask, he was panicking. I suggested that it would be the talk of the community and surely he’d want to know considering that one person being named would be very different to the entire village being named. He said that his cousin didn’t mention the details. He said that it didn’t matter how big the list was or who was on it. He was just thinking of going to a safe place. I put to him that he was living in Peshawar at the time anyway. He said that he used to come back to Swat for holidays and so he felt at risk when he was at home.
During the summer holidays when he would return from his studies in Peshawar the applicant claims to have volunteered with the [Organisation 1]. He recalled working on the 2010 flood response. He believes that he worked with them for 3-4 years, on an ad hoc basis, whenever they had a distribution. He wrote that he was involved with them from 2010 though to 2013.
The [Organisation 1] volunteering was undertaken from his village. I noted that this indicated that he continued to return to his village from Peshawar for 3-4 years despite having had an argument with the Taliban and being on a Taliban list. The applicant said that he continued to volunteer with both the [Organisation 1] and the Village Defence Committee (VDC) because he had been threatened and this had motivated him.
He said that his brothers weren’t involved in the VDC.
The applicant believes that the main reason he is a target is for his work on the VDC. He said that his work on the VDC involved showing where the Taliban members’ houses are and identifying two commanders.
The applicant described his role as including going on night patrol and giving clearance passes to those returning to their residences. The applicant said that he did not encounter any Taliban during his tenure.
Regarding identifying houses, the applicant described the situation as him walking with his [relative] who was a [rank] in the army at the time, along with other members of the VDC and that he told his [relative] which houses were those of the Taliban. He said that the army would not act immediately and instead they would return to their base of operations and develop their operational plans before acting. I asked how anyone from the Taliban would know that it was him who had identified the houses. He said that other people were around during the walk about as it was all in public and that everyone knew that the [rank] was his relative.
The applicant said that everyone knew about the houses and who the Taliban commanders were. They were obvious, he said. If that was the case, I asked again why the Taliban would think that it was him who revealed their location. He believes that because he was close to the location and standing with his [relative] at the time people would piece it together.
The applicant ceased his activities with the VDC in 2013 or 2014 because, as he explained, the army had established their own knowledge base about the areas they were operating in and no longer required the support of the VDC.
The applicant claimed that during his six odd years in Peshawar following the army operation and his confrontations with the Taliban that he continued to fear being targeted in Peshawar and as such he moved hostels. I put to him that if the Taliban was interested in harming him, they could find him at his university where he was attending on a regular basis through those years rather than in his hostel. The applicant responded that universities have security, which he acknowledged hostels do as well, but the university’s security is better, he claimed, as it also includes a police station. He suggested that it would be very easy for someone to sneak into a hostel.
The applicant stated that he was involved with the Pashtun Student’s Federation while at university for a ‘little while’ and that he was ‘not active’. He did not encounter any harm nor is that a basis of his claims, he explained, as the PSF is the student wing of the ANP.
The applicant claimed that in March 2017 his father was approached by the Taliban, and they demanded 5 million rupees as a result of failing to provide weapons as was initially demanded of him. He said that cousins in his village did not get the same demand. The applicant claims that the threat subsequently became that they would kill the father’s children. They gave him 3 days warning. The applicant claims that his father then went to Peshawar with his family and they stayed there for 3 or 4 months. When they thought it was safe to return, they did, but the applicant moved on to Punjab where he had a job. The applicant returned to Swat after completing his work in Punjab. The applicant confirmed that none of his family were harmed after they returned.
The applicant claimed at the hearing that his father was beaten a few months prior to the Tribunal hearing by Taliban who came to [Town 1]. He claims that it was in the evening when his father was at the mosque. The beating only ended when elders who were also present broke up the fight. The applicant said that the Taliban had their faces covered and he claimed that they asked about the applicant’s whereabouts, and that they referred to the applicant’s mother continuing to teach female students.
In a post-hearing submission, the applicant wrote that 5-6 men wearing ‘face coverings’ had approached his father and shouted at him asking him about the applicant referring to the applicant’s role in identifying Taliban houses to the military. He also claimed his father received threats relating to his mother’s work teaching girls. He wrote that people in the mosque subsequently came and intervened.
In the same post-hearing submission, the applicant provided a statement by his father who described the incident.
The applicant’s father did not go to hospital after the claimed beating. I asked if the Taliban were so angry with his father why wouldn’t they just wait until he walks home and kill him then. The applicant said that the mosque is right next to the house, just ten steps away, and so there was no opportunity to get him other than where they did.
I noted that he had not mentioned this incident in the pre-hearing submission. He claimed that it was because of his post-concussion and psychological conditions that he hadn’t.
The applicant claimed in his post-hearing submission that his parents have relocated temporarily to Peshawar to avoid the risk of being harmed by the Taliban.
I asked why he thought that they had sought out his father in 2024 and not before. He said that they were not interested in his father, but rather in him and his mother. He said that he anticipates that members of the Taliban and their associates will continue to pursue him for many decades to come. I put to him that it is suspicious that it happened just before this hearing and not over the past seven years. He said that he had a threatening letter in 2019, and that since 2022 (take over of Afghanistan by the Taliban) they have become powerful and so can pursue their targets.

I put to the applicant that he hasn’t been in Pakistan for seven years, and yet he is claiming that the Pakistan Taliban risked their lives and risked being caught by the security forces to come to the urban area of [Town 1] which is on the periphery of the capital city of Swat, to his father’s house just to send a message to the applicant (and his mother). He said that since 2022 the Pakistan Taliban have been very strong. He said that if they want to pursue a target, they can.
The applicant confirmed that none of his brothers including the two who continue to live in [Town 1] nor his sister have been harmed, though he claimed that in 2017 the brothers received threatening phone calls.
The applicant arrived in Australia on [date] November 2017
The applicant claimed that he had received two threatening letters and in the preceding years some threatening phone calls. The threat letter in 2017 he described as a final warning while another letter was claimed to have been sent in 2019.
The applicant wrote in his application form describing the content of the 2017 letter as:
On 21 September 2017 I received a threatening letter from Taliban stating that I have supported western NGOs and secular ANP party and that my family members are against their organisation. They also stated that my father has failed to pay them 5 million rupees and they will soon kill me to teach a lesson to my father.
The original letter was not provided at the Departmental stage. It was provided to the Tribunal along with a translation but as noted at the hearing, the translation does not mention the 5-million-rupee demand he claimed in his statement (above) and it is ambiguous as to whether it mentions the applicant having worked for a western NGO. The translated letter states:
We from the Tehrik-e Taliban Swat are giving you this last warning, the non-civilian work that you are doing here, it is not permitted by the Tehrik Taliban, because your leader Asfandyar Wali [president of the ANP] is an agent of the infidels, and would like to make the Jewish culture and custom common to our people and country and is trying to lead astray the people of the area, and you have put up the flags of these infidels in some areas, which were burned by us.
The applicant suggested that the reference to Jewish culture is a reference to working for [Organisation 1] as all NGOs, regardless of [Organisation 1] being representative of a Muslim movement and Pakistani, are perceived to be propagating Western values which in turn are proxies for Jews.
He made further post hearing submissions about this explaining that he didn’t see the letter before he left Pakistan, that his brother had found it at their doorstep and had not shown it to him at the time. He claimed in the statement that his brother described the letter to him once he was in Australia and he believes that his brother mentioned the 5 million Rupee demand. He wrote that his brother provided a copy of the letter after he had submitted the application for protection and that he believed that he had provided the letter to his then lawyer but that he doesn’t have any evidence of this. He also said that he didn’t have any evidence of his brother sending a scan of the letter to him as both he and his brother changed their WhatsApp accounts since then.
Regarding the 2019 letter he said that it came while he was in Australia. He said that he doesn’t have a copy because he was here, and his family had lost it.
The applicant believes that the Taliban have informants in the community and that these informants tell them about what is happening in the community. I asked why the informants would recall his involvement in the VDC from a decade ago as being of note. He said that in Pashtun culture revenge can be taken even after 100 years. He recalled having identified two commanders of the Taliban to the army who were subsequently assassinated and having identified the houses of low-level Taliban. He believes that those individuals or their family would seek to take revenge.
In considering the applicant’s claims I accept the applicant’s narration of events in the early 2000s including that he was beaten in 2008, the family threatened in 2009, that they moved to seek safety in the same year, he appeared on a Taliban list in 2010 and that his relatives have been harmed as described. I accept this as it aligns with the level of violence in the area around the time.
I accept the applicant’s narration both in writing and orally of his extended family’s involvement in politics and with the ANP and the circumstances that have befallen some of them.
I also accept that the applicant volunteered for the [Organisation 1] as he had described and that he worked for the VDC also as he had described. I accept the applicant’s narration of his studies and movements outside of Swat.
But I find that the applicant is not blamed by Taliban members for having identified the homes of two commanders and other members for the following reasons. It is unlikely that the applicant was perceived to be the only resident who spoke to the army about the Taliban, as there were other VDC members supporting the army. As for the applicant’s [relative], he is related to others in the village and not just the applicant and as such aspersions of collaboration would be cast wider than just at the feet of the applicant. That he did not encounter any harm for several years afterwards is further evidence that he was not considered responsible for the deaths of the Taliban commanders.
I accept that the applicant’s father, being relatively wealthy, was approached by the Taliban to provide weapons or cash through the years and most recently in March 2017. I accept this to be the case as extortion has been a common theme of Taliban fundraising and as the applicant’s father is relatively wealthy it is reasonable to assume at some stage he would have been approached.[3] I also accept that as leverage they would have threatened to harm the father’s children. But there is a difference between threatening someone and carrying out a threat and as such it is relevant to note that none of the father’s children were harmed in the seven years subsequent to that threat.
[3] >
When it comes to the applicant’s claims of more recent incidents, I have serious concerns. The applicant claims that the Taliban sent two threat letters and made threatening phone calls directed at him, one of the letters being in 2017 and another in 2019. The translation of the 2017 letter includes among other things what he claims is a reference to his ad hoc volunteer work with [Organisation 1], that ended in 2013. The applicant did not provide the letter to the Department. The version that was eventually provided differed in content to what was described. I acknowledge that the applicant eventually provided a plausible explanation for this.
In considering the veracity of the threat letters and his claims of receiving threatening calls, I note that the applicant was a low-level volunteer in activities that could be described as anti-Taliban. He was active at a low level in a political party that won elections in 2008, an indication of how widespread their support was; he played a role with the VDC in the very limited time that he was not away from Swat working or studying; and he volunteered intermittently for [Organisation 1]. I do not accept that someone of this low-level involvement would be of such interest to the Taliban that they would continue to call him in the years up to 2017 and then send a personalised threat letter and then again send a threat letter to him in 2019 despite the applicant not being present and visible, even when taking into consideration his earlier perceived transgressions and the family’s overall standing. As such I find that the threat letters the applicant claims to have received are not from the Taliban and that the applicant or his family have not received threatening phone calls relating to the applicant for at least a decade.
With regards to the father being beaten by a group of men in 2024, a few months before the hearing, for the same reasons given above, I do not accept that this occurred. I find it implausible that the Taliban would send a group of fighters into an urban area controlled by the Pakistan state in a district that has had few incidents (an indicator of the effectiveness of the Pakistan state to maintain security) to harass an elderly man in pursuit of his son who was not seen in Swat for many years and even when he was present had only a low-level profile. I also do not accept that the Taliban conveyed the message about his mother as I do not accept that the beating occurred.
I have also considered the applicant’s claims that his brothers received threatening calls in 2017. This is an odd claim considering that throughout the hearing he claimed that they were not targeted and that it was the applicant that was at risk because of his anti-Taliban activities. I give the applicant the benefit of the doubt and accept that his brothers received some calls in 2017 threatening them.
Discussion of Country Information
We discussed a wide swathe of country information at the hearing including material that was submitted by the representative and some of what was gathered by the Tribunal. To avoid doubt I note that the applicant’s representative provided considerable country information in various submissions throughout 2024 including bundled into the request for a priority hearing in a submission dated 1 March 2024. I have not engaged with each article and the messages contained within but rather I engage with the overall question of the level of security and safety in Swat, the reach of the Taliban into Swat and what the reasonably foreseeable future holds for Swat.
It is necessary to consider the general security situation into which the applicant would be returning to as a perilous security environment amplifies certain individual risks, whereas a more secure environment mitigates them. When there is chaos that accompanies conflict, violence can occur with virtual impunity including general attacks based upon, for example, political belief or association. Even when there isn’t chaos but there is a presence in the local community of active elements of the Taliban, then their ability to take action against those who hold opposing views or are deemed undesirable may become relatively easier. Such environments may heighten the level of risk to the applicant where, otherwise, in peaceful and secure circumstances the threats to him would be limited.
I noted to the applicant that there were no civilian deaths in Swat in 2023 and in 2024 there were two, according to one database. Prior to that through to 2015 there were single digit incidents and single digit deaths from terrorism and sectarianism.[4] The applicant said that this is wrong. He referenced an incident two days earlier where visiting diplomats were attacked. The incident involved a roadside bomb that exploded killing a police officer in their convoy and injuring four other policemen.[5] I note that police are not considered civilians in this context.
[4] >
The representative also provided detailed pre-hearing country information that included the following information about the two deaths recorded in the database for 2024.
26 July 2024: Four persons, including two policemen, a polio worker and a civilian, were injured on Wednesday night when unknown miscreants launched an unprovoked attack on police personnel stationed at a checkpost in Landakai area of Swat.
28 July 2024: Unidentified gunmen opened fire in which two people were killed in Mingora city, the headquarters of the Swat District of Khyber Pakhtunkhwa Province of Pakistan, Khorasan Diary reported on July 28.
28 August 2024: The Police constable, Rehman Ullah, who was injured along with another constable in militants’ attack on Banr Police post in Mingora town of Swat District in Khyber Pakhtunkhwa on August 28, succumbed to his injuries at Saidu Sharif Hospital on August 29, reports ARY News. Swat District Police Officer (DPO) informed the media that unknown militants attacked the Banr police post and hurled grenades at the policemen on duty.
I note that the first incident was not reported in the South Asia Terrorism Portal as there were no deaths from the incident, nevertheless, it does lend weight to a view that there is insecurity. The 28 July incident are the two civilian deaths for 2024. The 28 August incident involves the death of a policeman as does the roadside bomb attack against the diplomats.
This distinction between civilians and security forces is relevant as there is evidence that the Pakistan Taliban have changed tactics and are avoiding civilian casualties.
Experts have noted that by the spring of 2021, the Taliban’s relatively new Emir had implemented very significant changes in the Taliban’s modus operandi to avoid past violations that were central to its decline. His new approach significantly reduced attacks against civilians and considerably reduced civilian casualties in attacks.[6]
[6] >
The view that the Taliban are eschewing civilian collateral damage is also supported by a Pakistan think-tank.[7]
[7] >
As such that there have been recent incidents in Swat between security forces and insurgents as detailed in the representative’s post-hearing submissions is informative of ongoing tensions between the Pakistan state and an insurgency and contributes to assessments of the general security situation, but it is not indicative of the Taliban targeting civilians.
When this was put to the applicant, he responded that he doesn’t trust the Taliban. He referred to the situation as deteriorating, police being targeted, and for that reason there is an army operation planned.
I noted that the army operation is in response to the poor security situation in the Tribal Belt including districts such as North and South Wazirstan and Bajaur and that there is no indication that Swat will be a target of the operation.[8] He said that the operation is in Khyber Pakhtunkhwa and Swat is part of it. He recalled reading an article that the Taliban are focusing on Swat. I provided an opportunity for the applicant to submit the article, but none was provided in the post hearing submission package. He said that because of the deteriorating situation there are a lot of peace rallies in Swat.
[8] >
Among the country information provided by the representative included several that discuss the peace rallies, particularly those held in 2022. A Jamestown Foundation report noted that ‘On October 11, for example, thousands of people gathered at Nishat Chowk in Swat to demonstrate against the rise of the TTP. Such a situation will provide valuable support to the Pakistani government as they attempt to handle the situation and make it difficult for the TTP to sustain a presence in the area.’[9]
[9] >
I noted that considering the population of Swat is 2.3 million and noting the limited number of incidents that it would be reasonable to categorise it as ‘moderately safe’. I note that another Pakistan think-tank, Centre for Research and Security Studies, has identified areas such as Swat as ‘relatively peaceful’ based on the situation through to the end of the second quarter of 2024.[10] The applicant said that he doesn’t agree with the numbers and recalled another VDC member who had been attacked.
[10] >
I raised the view of some experts that the Taliban have a localized focus on the geographical area along the border with Afghanistan known as the Tribal Belt. During peace negotiations in Kabul between the Taliban and Pakistani government the Taliban stressed that the reinstatement of the semiautonomous status of the Tribal Belt and the implementation of sharia there were its key demands.[11] The applicant said that this is correct but noted that the roots of the Pakistan Taliban started in Swat and as such the district has a special meaning to the Taliban.
[11] >
The applicant had claimed that his father was beaten which I have not accepted and that others were targeted by the Taliban in Swat. This led to a discussion of claims that the Taliban are present in Swat. I noted that the army had said that there was a misperception created on social media of a large presence of Taliban and that the reality is that a ‘small number’ have ‘sneaked in from Afghanistan to resettle in their native areas’ and that they are being monitored by the army.[12] He said that he doesn’t agree with the military claims, noting that a police DSP and a military major were kidnapped recently. He said that if the Taliban were not powerful and not a threat, how could they carry out such operations. This shows power and coordination, he suggested, and that it can’t be done by just a few people.
[12] >
I acknowledge that there has been some reporting on the presence of Taliban since 2022 in Swat, particularly the mountain areas but not the urban centres. Its over two years since the earliest reports of a return to Swat and yet there isn’t any evidence of an uptick in attacks. The mere presence of Taliban in the mountains does not necessarily mean that they are going to kill people in urban centres.
The only evidence of a DSP being kidnapped in Swat is from 2022 during the temporary ceasefire between the Taliban and the Pakistan government and that he along with others were released 12 hours later.[13]
[13] >
I have also considered the claim made by the representative regarding the Taliban’s increase influence arising from their take over of Afghanistan, but note that this has been a fact for over three years, it is a reality that has already had a chance to play out in the situation on the ground and incorporated into the analysis of those experts who reflect on the situation in Pakistan.
The representative also included an incident involving blasphemy in his submissions and noted that as it was listed on a page that was headed terrorist activity it should be considered as an indicator of the overall risk the applicant faces from the Taliban. I disagree. The circumstances of the mob attack against a man accused of blasphemy are not in any way similar to the risks the applicant faces.[14] That there are mob attacks only marginally informs considerations of the security situation in general but does not go to the ability of the Taliban to infiltrate the urban areas of Swat where the applicant would be returning to.
[14] >
The representative in written and oral submissions argued that the data isn’t necessarily reliable and that a decision on the circumstances facing the applicant can’t be made solely on the data. I accept the latter argument without reservations.
An example of the doubt cast on the data by the representative is an explosion in Kabal village, Swat, that led to 18 people dying and injuring 50 yet the incident was not included in the SATP, PIPS or CRSS data as per the submission. The incident was reported as being triggered when explosive material caught fire.[15] The representative asserted in his submission that this should be taken with a grain of salt as it was information provided by the authorities and that in a war against terror an explosion at a counter-terrorism facility is relevant to the real chance assessment. I disagree. It is important to note that the SATP, PIPS and CRSS are non-government organisations who obtain their information, as noted in the representative’s submissions, from various sources. There is no evidence that supports the assertion that their assessment of the Kabal incident not being terrorist related was driven by a government influenced decision.
[15] type="1">
The representative added further doubt to the think tanks’ credibility by comparing the reports across two organisations, SATP and the Centre for Research and Security Studies (CRSS) for Swat noting that they differed. The representative provided a table summarising this data.[16] That there is some discrepancy is not unusual nor unexpected. Each organisation will have its own methodology as was noted in one of the sources used by the representative in his submission.[17] Were the numbers starkly different it could be cause for concern but in this instance the figures from CRSS are lower than the source used by the member (SATP) for two years and higher for one year.
a.For 2021 SATP shows two civilians killed and one insurgent.[18] CRSS shows 2 killed without distinguishing if they were civilians, security or terrorist.[19]
b.For 2022 SATP has eight civilian deaths (the Idrees Khan incident), and five terrorists.[20] CRSS has two deaths without distinguishing if they were civilians, security or terrorist.[21]
c.For 2023 SATP shows zero civilian deaths, two security forces deaths and one terrorist.[22] CRSS shows seven fatalities without distinguishing if they were civilians, security, or terrorist and ten injured.[23]
[16] Page 13, pre-hearing submission
[17] SATP Swat database
[21] SATP Swat database
[23] >
CRSS data does not disaggregate security, terrorist, or civilian deaths and hence there is some ambiguity when comparing them. This could be one of the reasons for the slight variation in numbers. Either way, whichever source is relied upon, the picture it paints is of civilians not being targeted and minimally suffering collateral damage when noting that these figures are for the entire Swat district which has a population of 2.3 million.
The representative provided a Facebook page dated 22 May 2023 that was translated referring to a Mohammad Jan who was ‘killed in firing by unknown people in Kuza Bandai’. When asked about the relevance the representative noted that this incident is not recorded in the SATP datasheets.
When considering the reliability and quality of the data collated by three independent think tanks, I find the professionals at organisations such as SATP, PIPS and CRSS are aware of the circumstances in their own country and are best placed to assess nuanced differences between reports of attacks, follow up on false social media posts and make revisions accordingly and manage the complexities of monitoring the situation. Weighing against this view, the representative raised the issue of a limitation on media reporting (DFAT [3.114] - [3.119]) and hence inferred that not all attacks are reported, but again, I am satisfied that these organisations are aware of the various modern sources of information and do not rely solely on traditional media sources which may be limited in some instances in some locations of Pakistan. It would be illogical and unprofessional for a member based in Melbourne without Urdu language skills to rely on some degree of skimming the web and social media for reports of incidents that don’t appear in the databases of three professional think tanks and then based on such online chatter to undermine the credibility of the work of these professional groups.
The applicant provided a copy of a letter from the Office of the Deputy Commissioner noting a high-level threat alert to large public gatherings in Swat dated September 2024. I accept this letter as legitimate but note that there are many reasons why such a letter would be distributed including that the government wants to dissuade large gatherings for political reasons or that such threat notices are regular occurrences that prevent blame being placed on the local authorities if something were to occur. It is also possible, as the applicant infers, that such a letter is indicative of real information being available of a real threat. But as of the date of this decision, no incident has occurred.
As such, in considering the country information before me I find that there is a presence of Taliban in Swat District, which may be a reason for the small uptick of attacks rising from two civilian deaths in 2021 to eight in 2022 and zero again in 2023 and two in 2024. But it is relevant to note that Swat has a population of over 2.3 million people. This is relevant when considering the level of general insecurity and in turn the ability of the Taliban to penetrate urban areas and as such the circumstances into which the applicant would be returning to. The nature of the attacks is also indicative of careful targeting. As such, despite attacks on security forces and those actively supporting them (i.e., Chinese diplomats), for the millions of civilians living in Swat, the situation, based on the evidence available describes an environment that I consider to be moderately safe.
Considerations
Prior to turning my mind to considering the applicant’s claims of fearing harm, it is relevant to make a note on terminology. An issue arose through submissions at the hearing over the DFAT report’s use of the term ‘risk’. Specifically, the representative noted that in the most recent DFAT report ANP members were found to face a ‘moderate risk of terrorist violence’, and Pashtuns similarly were identified in the report to face a ‘moderate risk of violence’. The representative also made similar references to other claims. The representative then mistakenly conflates this with the real chance and real risk test by arguing, ‘This suggests a level of risk far greater than a “real chance”, which requires a risk that is not remote nor fanciful.’
The DFAT reports across all countries include a section defining the term risk as follows:
High risk: DFAT is aware of a strong pattern of incidents.
Moderate risk: DFAT is aware of sufficient incidents to suggest a pattern of behaviour.
Low risk: DFAT is aware of incidents but has insufficient evidence to conclude they form a pattern.
It is important to distinguish how the DFAT usage of the term risk differs from the statutory requirement under the Act for a member to assess risk. For members, the term carries the meaning of ‘real chance’ being not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test.
Whereas risk is defined by DFAT in their reports to mean that ‘DFAT is aware of sufficient incidents to suggest a pattern of behaviour,’ a pattern of behaviour refers to something other than random events. It is directly relevant to the decision-making process as a well-founded fear of harm must involve ‘systematic and discriminatory’ conduct (s5J(4)(c)) and under complementary protection there must be an actual, subjective intention to inflict harm. A low, moderate, or high risk in DFAT parlance may be aligned with a real chance of serious harm, or it may not; the circumstances of each applicant will determine the case as will contextual country information including up to date information when the circumstances have changed. It is not appropriate for a member to abrogate their statutory responsibilities to a DFAT officer by adopting a generalised view, instead it is incumbent on members to assess an applicant’s individual circumstances.
Overt and imputed anti-Taliban activities from the past
There are two elements to the applicant’s fears of harm from the Taliban. They arise from his actions such as his involvement with the ANP, VDC (including all claims arising from his involvement) and [Organisation 1]; and secondly the actions of his family including their past and present support of the ANP, their involvement in the military, his father’s refusal to provide financial and in-kind support to the Taliban and his mother’s teaching of girls. All of these are claimed to be perceived by the Taliban as either un-Islamic or anti-Taliban and therefore a reason for him to fear harm.
In a post-hearing submission, the applicant wrote that his mother had quit her teaching role. On this evidence, I find that the mother will not return to her work into the reasonably foreseeable future. I find that this will impact the applicant by lowering his and his family’s overall profile marginally.
In considering the level of risk to the applicant arising from his family’s activities and profile, I note that the applicant’s brothers have not been harmed although seven years ago they received some threats over the phone. That they haven’t been harmed is an important insight into the level of risk the applicant faces arising from his family’s profile. It is also relevant that there is no claim that other extended family members have been harmed other than those the applicant detailed from over a decade ago who had active roles and held public positions at that time relevantly, unlike the applicant. When considering the risk arising from his family separate from his own actions, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm.
With regards to the applicant’s activities through the years leading up to his departure from Pakistan, I accept that many would be perceived to be anti-Taliban activities. But they cumulatively amount to the applicant having a low-level profile. The question to be considered is whether this low-level profile will trigger a desire for action against him into the future and in turn that the applicant would be deemed a worthwhile target to dedicate resources considering the risks and were that be the case, in the pursuit of the applicant would the Taliban fighters be caught by the authorities.

100. I accept that the applicant would be remembered by his community. The description the applicant provided of his life in Pakistan is indicative of a tightly knit community that knows the business of others. But although the applicant was a member of the VDC, so were many others. He was a member of the ANP, as were many others. The applicant managed to complete two degrees, regularly return to Swat, volunteer, and otherwise continue with his life despite a very volatile security situation in the years during and after the military operation in 2009. The security situation has greatly improved since then, a fact that would limit the willingness of the Taliban to commit to pursuing the applicant.
101. Even acknowledging that someone from the community who knew of his past activities conveyed knowledge of his return to the Taliban, I find that the Taliban would not be interested such that they would dedicate limited resources to pursue someone who had not been pursued for several years when the security situation was far more fluid and the risks to the Taliban lower.
102. As noted above, the situation in Swat is moderately safe, there are incidents involving the Taliban but overwhelmingly they are targeted and directed at the security forces. While there is a chance that the applicant will be in the wrong place at the wrong time, I find such a possibility to be remote.
103. For these reasons I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons of his past activities with the ANP, VDC and the [Organisation 1] whether it be for reasons of direct targeting or by being in the wrong place at the wrong time.
104. The applicant’s father is perceived to be relatively wealthy. As a result, I have accepted that his father has been approached through the years by the Taliban or their proxies to contribute to them. He has refused according to the applicant. In his statement from 2024 the applicant mentions a threat his father received in 2019, but relevantly he has not been harmed at least in recent years (I have not accepted that he was beaten as claimed in 2024).
105. Nor have the applicant’s brothers have not been harmed as leverage for the attempted extortion or extorted themselves and nor have the cousins. The applicant holds a similar familial place as his brothers and more broadly as his cousins. This is strongly indicative of him not being at risk of extortion. But I accept that there would be a perception among some that the applicant having returned from Australia would come with some riches. But I also find that the applicant’s subsequent lifestyle after returning would quickly put to rest such assumptions and that any gossip or rumours of a wealthy returnee would be short lived. When considering the situation as a whole, noting that his father hasn’t been approached for a considerable period of time and the level of safety in Swat, I find that the applicant will not be extorted by the Taliban, nor will he be used as leverage in an extortion attempt against his father. To avoid doubt, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm by the Taliban for reasons directly or indirectly related to extortion.
106. To avoid doubt, I find that the applicant does not face any harm arising from his past involvement with the Pashtun Student Federation and as such does not face a real chance of serious harm or a real risk of significant harm arising from his past involvement.
107. To further avoid doubt, in my above considerations I have turned my mind to any evidence before me that may indicate that the applicant faces harm from another terrorist or Islamist group other than the Taliban. Based on the evidence before me, including the country information and the claims made by the applicant, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from other terrorist/insurgent/Islamist groups in Pakistan.
Being Pashtun
108. The applicant acknowledged that Swat and KPK is the home of Pashtuns and acknowledged that those who are Pashtuns without a profile or ‘ordinary’ Pashtuns do not face harm from the Taliban. Instead, he said that his risk arises from his specific profile.
109. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons of being Pashtun.
Mental health
110. The applicant identified the relationship between his mental health and his claims in the context of relocation by way of a written submission as follows:
a.He will be unable to work and sustain a livelihood
b.As a sufferer of PTSD that he would be attract adverse attention or harm from the community or the Taliban
c.He would be unable to obtain proper treatment

111. While the applicant engaged with these claims in the context of relocation I have nevertheless turned my mind to them at this stage of my considerations.
112. At the hearing I noted to the applicant that there are numerous psychologists available and that there is also medication available to him in Pakistan. He said that he doesn’t believe that he would be able to access proper medical care. He believes that there is a shortage of psychologists. The applicant recalled reading that there were 4-5 psychologists in the whole of Swat.
113. The applicant said that mental health issues are not perceived as they are in Australia. He said that the community sees people with mental health issues as ‘mad’, that people don’t show pity or respect to them and that this is the case even from one’s own family. He said that they are labelled, and people treat them badly. According to the applicant, some people throw stones at them, call them names, and treat them like animals including chaining them.
114. I put to the applicant that what he had described aligned with the situation facing those with severe mental health diagnosis, but his circumstances align with what I have read is quite common in Pakistan, including but not limited to PTSD and anxiety (country information indicates that upwards of a third or more people in Pakistan have these common diagnosis).[24] I put to him that there is no evidence that the community is stoning or chaining people who have such diagnosis. He responded by saying that in daily life he is dependent upon medication, he sees two psychologist and a psychiatrist, and relies upon 7-8 types of medication. He said that he has high levels of stress. He said that he would not be able to get that level of support in Pakistan.
[24] With regards to the ill treatment, in considering the applicant’s claims of harm from the community and family arising from his mental health, I find that the harm he faces does not amount to serious or significant harm.
116. As to his concern about reduced supports. When asked about what the consequences would be if he was unable to get that level of support, he said that his fears will return, and his mental situation will deteriorate. He said that he sees a physiotherapist and GPs arising from his concussion.
117. It is important to note that the protection regime is not one that provides a pathway for people who fear a lack of adequate medical support for non-discriminatory reasons nor does it cover risks of self-harm, as discussed further below.
118. I accept that the applicant’s mental health will deteriorate in the near term as he will be separated from the supports that he receives in Australia. But based on the evidence available to the Tribunal, there is no basis to find that the applicant would face a real chance of serious harm for the essential and significant reason of being persecuted by another, whether individual or the state. The harm the applicant faces is one that arises due to a separation from his current team of specialists, a move to a less developed country with fewer resources and his underlying fears from past events. None of these have a persecutory element.
119. Similarly, when considering Complementary Protection, ‘significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
120. With regards to arbitrary deprivation of life, the courts have considered whether an inability to access the necessary medical support which in turn would lead to the loss of life constitutes arbitrary deprivation of life. In MZAAJ v MIBP [2015] in obiter dicta comments at [42] Judge Riley notes that the arbitrary deprivation of life ‘does not concern the consequences of scarce medical resources in developing countries.’
121. There is no claim that the applicant faces the death penalty.
122. Relevant to these considerations is that the definition of torture in the Act requires an element of intent. It is defined as ‘an act or omission by which severe pain or suffering … is intentionally inflicted on a person’ for a specified purpose or reason. There are similar requirements of intention in the definitions of ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’. In the case of the applicant, there is no specific actor that is seeking to harm him by way of depriving him of medical treatment. The differential level of medical treatment the applicant can obtain in Australia relative to Pakistan is not a basis upon which Australia’s protection obligations are triggered unless there is evidence of the government or some service providers intentionally withholding service to the applicant which there isn’t.

123. Similarly, self-harm has been considered by the courts. Self-harm does not have an individual, other than the person claiming protection, as a persecutor (see for example: EZC18 v Minister for Home Affairs & Anor [2019] FCCA 464 and upheld on appeal: EZC18 v MHA [2019] FCA 2143, and also CSV15 v MIBP [2018] FCA 699 and CHB16 v MIBP [2019] FCA 1089). While it may be argued that the applicant’s psychological state is as a result of the actions of certain past events which may have been persecutory and as such a return to Pakistan triggering past memories amounts to harm for s 5J and complementary protection considerations, this is not the same as it being future harm (see for example: BVT20 v MICMSMA [2020] FCAFC 222). For this reason, I do not consider further any harm that arises from the applicant’s own psychology.
124. The applicant also claims to fear harm from being unable to find employment but at the same time he feared harm for being involved in politics into the future. These are two incompatible claims—if the applicant can be involved in the VDC or ANP then the applicant can also be involved in some form of paid employment. I note that the health assessments themselves are contradictory in that in this year alone he has been assessed as being able to work and unable to work. In considering the applicant’s circumstances as a finding of fact, I find that he will be able to undertake some work possibly only on an ad hoc labouring basis (as well as some political activity as he has claimed that he will do upon return). As he will be able to undertake some work and he has a family home and brothers living in Swat, I find that he does not face serious or significant harm arising from how any potential employers may treat him due to his mental health and in turn a risk of an inability to subsist.
125. For all the above reasons, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his mental health even when considering all of the various claims detailed above, and when incorporating a foreseeable deterioration of his mental health.
Future political activity with the ANP
126. As noted above, despite the applicant’s mental health challenges, I accept that he will be able to and is motivated to undertake some voluntary political work based on his statements, the oral evidence given at the hearing and his ongoing participation with the ANP in Australia, which shows a commitment to the ANP and a desire to continue to be a member into the future.
127. I put to the applicant that country information indicates attacks against ANP figures in Khyber Pakhtunkhwa in 2023 were limited including just one ANP leader being killed in the entire province.[25] In 2022 two political figures were killed one in North Waziristan and the other in Bajaur district.[26] I suggested that this indicated that the ANP weren’t being targeted as they once had been.
[25] The applicant said that the Taliban look for chances and moments. He said that because they have been a target for so many years, they are alert and that the number of incidents against ANP leaders has reduced because of them being alert to the risks.
129. Noting that the applicant is not a politician and will not be, that he hasn’t in the past risen through the administrative ranks and won’t into the future, in part because of his mental health, I find that the applicant is no different to his relatives who are supporters or members. While I acknowledge the DFAT information about there being sufficient incidents to suggest a pattern of behaviour and accept that one or two deaths a year throughout the country amounts to a pattern, I find that the applicant’s future low-level ANP activities profile will not suffice for the Taliban to risk their resources to harm him.
130. For these reasons I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for the reasons of his future involvement with the ANP.
Future VDC activity
131. I note that the applicant ceased his involvement with the VDC sometime around 2014 for the reason, as he explained, that the army was familiar by that stage of the area and there was no longer a need. The applicant said that he would rejoin the VDC if there was a need into the future. Based on the applicant’s assessment from the past and there being no evidence before this tribunal that the army has actively started to recruit once again for VDC membership in [Town 1], I find that the applicant will not be involved in a VDC into the future. As such I find that the applicant will not face any chance of serious harm or risk of significant harm arising from the VDC for the reason that he will not be involved with the VDC.
Future volunteer work with [Organisation 1]
132. The applicant volunteered when he could with the Pakistan [Organisation 1], spurred by a desire to help after a [natural disaster]. I am satisfied that the applicant would lend a helping hand into the future with the [Organisation 1]. I note that there is no evidence before me that any [Organisation 1] volunteers have been harmed in the past several years. I also note that at the peak of the violence from the past the applicant was not harmed for his volunteering. While I acknowledge the DFAT report finds that there are sufficient incidents to suggest a pattern of behaviour in Pakistan of NGO staff being harmed this is a generic statement that covers the entire country with a very diverse set of circumstances. When considered as a whole, I find that were the applicant to volunteer on an ad hoc basis in Swat where the security situation is moderately safe, he will not face a real chance of serious harm or a real risk of significant harm.
Future supporter of education for girls
133. The applicant is a supporter of education for girls. This is a view that can be interpreted as being anti-Taliban. I note that the applicant’s mother, who was an actual teacher of girls, was not harmed and was threatened most recently a decade ago despite teaching girls in the intervening years and that the applicant’s brothers who would be imputed with the same views have not been harmed.
134. I find that the applicant’s thoughts and beliefs, even accepting that they are voiced from time to time in public discourse, will not lead to the Taliban deploying resources to harm him if it became known to them that he supports girl’s education. As such I find that he will not face a real chance of serious harm or a real risk of significant harm for the reason of supporting girl’s education.
Future threat of being recruited for reasons of being the eldest son
135. The applicant described the Taliban as extorting his father with a demand to have his son join them. This is a demand that was made in 2009. There is no information before me to suggest that this is cultural or a modus operandi of the Taliban that has persisted into 2024 nor is there a reason to believe this to be the case as opposed to the Taliban accepting any recruits that meet their requirements. As such, I find that the Taliban are not pursuing a first-born son approach to recruitment. For this reason, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons of being the eldest son.
Cumulative claims
136. The applicant has a wide range of claims that span his family and past activities to future actions and his mental health. In considering how these factors interact and potentially exacerbate the risk he faces or amplify the harm I note that in many cases they compound an imputed political opinion that can be described as anti-Taliban or anti-violent-Islamist. As the source of the harm the applicant fears is from the Taliban the question is whether when considered cumulatively the chance or risk that the Taliban or another extremist group will act against him amounts to a real chance or a real risk. I find that even when considered cumulatively it does not amount to a real chance or a real risk. The applicant would be returning to a moderately safe environment in which the Taliban’s activities are limited because there is a deterrence factor. The applicant’s past and future profile is of a low-level nature. Considering these two factors, I find that the Taliban will not risk their limited resources to identify and target the applicant.
137. I have also considered how the applicant’s mental health interacts with the other risk factors. In those cases where the risk is from another individual targeting a class of people the fact that someone has mental health challenges does not change the equation. In other words, if the Taliban are targeting ANP members then they will target them regardless of their mental state. There are no instances into the reasonably foreseeable future or those that arise as a necessary and foreseeable consequence of removal in which the applicant’s mental health will change the behaviour of himself or impact a potential persecutor including the community such that the applicant faces a real chance of serious harm or a real risk of significant harm.
Conclusion
138. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

141. The Tribunal affirms the decision under review.
Date of hearing: 24 September 2024
Representatives for the Applicant: Ms Catherine Farrell
Mr Luke Brennan

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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